New York Divorce Blog

The Finer Points of Spousal Support

Posted By Lois Brenner || 1-May-2013

This is, of course, not a real letter and certainly not from the real Kevin
Federline, but I get questions like this all the time from husbands and
wives wondering how they’ll be able to support themselves after
going through a divorce.

So what exactly is “spousal support” and how does it work?

Spousal support is known as spousal maintenance and has been referred to in the past as
“alimony.” During the course of a divorce proceeding, it is
awarded to the spouse (male or female, and in New York State this includes
same-sex couples) who is financially dependent on the other spouse during
the course of the marriage. Spousal support can be awarded on a short-term
or lifetime basis (often half the length of the marriage) but is generally
given for rehabilitative purposes (so the lower income spouse can go get
their MBA or their Ph.D to give them a better opportunity to earn a higher
salary). Spousal support is tax deductible for the payor and is taxable
income for the recipient.

Not to be confused with
temporary alimony or
temporary spousal support, which is awarded
only until a divorce is finalized. Temporary spousal support in New York is
subject to a specific formula while traditional spousal support is not.
Temporary spousal support is set at 30 percent of higher-income spouse,
less 20 percent of the lower earning spouse’s income.

Awarding spousal support is not as clear-cut as something like child support.
The amount of money awarded is often subjective with the judge. And many
different factors come into play when awarding spousal support.

Length of the marriage

Earning capacity of each party in the divorce

Earning impairment for one or both parties in the divorce

Property and whether it was acquired by one or both parties before or during
the marriage

Income of both parties

Prenuptial and postnuptial agreements

The lifestyle maintained by both parties during the course of the marriage

Because there are so many combinations and permutations of the aforementioned
factors that affect spousal support, fighting over it can become costly
and drawn out—in some cases for
years after the divorce. In the court of law, you are essentially at the mercy
of a judge who could have gone through a messy divorce themselves and
who may have a biased opinion when it comes to the subject of how much
spousal support you deserve.

Negotiating the spousal support award with a professional divorce mediator
is a much better idea than going to court because it allows for a solution
that is in the best interests of both parties. For example, because there
are tax implications with spousal support, both parties in the divorce
can work with a mediator to review their expected income along with the
distribution of their marital property to find a tax-friendly resolution
that makes sense for everyone.

With
spousal support and
divorce, there always numerous question-marks and concerns. But with proper counsel
and support there is always a solution.